The European Commission (EC) is launching an infringement procedure against Hungary over recent Hungarian legislation that criminalizes the promotion or support of what it terms “illegal immigration.” At the same time, the EC is referring Hungary to the Court of Justice of the European Union (CJEU) for non-compliance of its asylum legislation with EU law.
According to an official press release dated Thursday, July 19, the EC is sending Hungary a “letter of formal notice” - the first step in an infringement procedure - because of concerns about the legislation, which it says “criminalises activities that support asylum and residence applications and further restricts the right to request asylum.”
The press release recalls that the Council of Europeʼs Commission for Democracy Through Law (the ‘Venice Commissionʼ) and the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) published their Joint Opinion on the new legislation and the constitutional amendment on June 25, 2018. Their analysis concluded that the provisions examined infringe upon the right to freedom of association and expression and should be repealed.
The Commission has concluded that Hungary is “failing to fulfil its obligations under the EU Treaties, EU laws and the Charter of Fundamental Rights of the European Union.”
The Hungarian legislation - dubbed “Stop Soros,” in reference to an alleged plan for managing the migrant crisis which Hungaryʼs government has repeatedly attributed to Hungarian-born investor George Soros - was passed in June.
The package defines support for “illegal immigration” in the Criminal Code as offering to initiate an application for asylum to anybody who has arrived from, or passed through on the way to Hungary, any country in which that person was not persecuted.
The first offense will be treated as a misdemeanor punishable by imprisonment of up to 90 days; however, repeat offenses and the support of such illegal activity by material means could result in imprisonment for a period of up to one year.
The package amends the act on asylum rights to prohibit the approval of any application for asylum by a person who has travelled through a country in which they were not persecuted or at risk of serious harm, and where they could have applied for asylum.
Commenting on news of the launch of a fresh infringement procedure, János Halász, spokesman for MPs of the governing Fidesz, said the EC is again putting pressure on Hungary in the interests of Sorosʼs “network.”
“Brussels is defending Soros again,” he was cited as saying by state news agency MTI. “Brussels is not trying to pressure Hungary in the interests of the Soros network for the first time. This also shows that the EC is strongly under the influence of the Soros network and is defending the [networkʼs] migration policy.”
Minister of Foreign Affairs and Trade Péter Szijjártó claimed at a press conference on Wednesday that Hungary is “protecting Europe’s interests against Brussels,” according to a report by online news site Hungary Today. He insisted that Brussels’ migration policy has put the bloc in danger, noting that Europe has suffered 29 serious terrorist attacks in the past three and a half years, committed by “people with a migrant background.”
The EC and several international organizations already expressed concerns regarding the Stop Soros law last month.
In addition, the EC today also decided to refer Hungary to the Court of Justice of the European Union (CJEU) for non-compliance of its asylum and return legislation with EU law.
The press release recalls that the EC first launched an infringement procedure against Hungary concerning its asylum laws in December 2015. Following a series of exchanges on both administrative and political levels and a complementary letter of formal notice, the Commission sent a reasoned opinion in December 2017.
“After analysing the reply provided by the Hungarian authorities, the Commission considers that the majority of the concerns raised have still not been addressed and has therefore now decided to refer Hungary to the Court of Justice of the European Union – the last stage of the infringement procedure,” says the press release.
The EC notes that the Hungarian legislation falls short of the requirements of the Asylum Procedures Directive on several counts. Among these, it says that:
- The border procedure implemented by Hungary is not in compliance with EU law as it does not respect the maximum duration of four weeks in which someone can be held in a transit center and fails to provide special guarantees for vulnerable applicants.
- Hungary fails to provide effective access to asylum procedures as irregular migrants are escorted back across the border, even if they wish to apply for asylum.
- The indefinite detention of asylum seekers in transit zones without respecting the applicable procedural guarantees is in breach of EU rules as set out in the Reception Conditions Directive.
- The Hungarian law does not comply with the EUʼs Return Directive as it fails to ensure that return decisions are issued individually and include information on legal remedies.
Amnesty International issued a press release in response to the launch of the new infringement procedure, welcoming the ECʼs action but urging European leaders to do more.
“Hungary’s attempts to prohibit the legitimate and vital work of people and civil society organizations working to protect the rights of migrants and asylum-seekers is unacceptable,” said Iverna McGowan, director of AI’s European Institutions Office.
“By challenging a legislative package that flagrantly breached EU human rights law, the European Commission has sent a clear and unambiguous message that Hungary’s xenophobic policies will not be tolerated,” she continued, adding that “European leaders who have remained largely silent over the human rights crackdown in Hungary must now follow the Commission’s lead and call for these laws to be shelved.”